Sandbagging Constitutional Rights: Federal Habeas Corpus and the Procedural Default Principle


Slowly and painfully crafted over the centuries, the federal writ of habeas corpus emerged in the 1960s as the prime instrument for breathing life into the Bill of Rights. But today the scope of the writ has shrunk again, with its power to call state proceedings before a federal court for review seriously weakened by a powerful counterattack. While there are several aspects to this reaction, a fundamental one, which has always been central to the debate about habeas corpus, concerns the importance of finality in criminal proceedings.

Controversy over the scope of habeas review has focused on two competing concerns. According to one view, our greatest fear should be that there are those in prison who have been improperly convicted. Perhaps they never did the acts for which they were found guilty, or perhaps they were convicted in violation of the procedures and standards that we have declared in the Bill of Rights to be minimally acceptable. According to this model, we should leave no stone unturned to reveal such mistakes, even if it means that we must dig beneath the record of the proceedings and determine the facts de novo. Of course, some colorable claims must be made to initiate such an inquiry, but once they have been asserted, the books must be reopened.

But there is another model which stresses the values of economy, dispatch and finality of decision. Under this view, it is in the obvious self-interest of prisoners to want to reopen proceedings, and unless they are strongly curbed, they will tie courts up interminably in costly and frivolous inquiries. One salutary policy for curbing this tendency is to deny habeas review to those who failed to raise the matters of which they now complain in full and timely fashion in the state courts, when they earlier had that opportunity. This policy is often referred to as a sanction for procedural default.

This discussion will make some general comments about the development of habeas corpus in American criminal procedure but will focus particularly on the validity of the arguments for procedural default since that doctrine has become the centerpiece of the habeas counterrevolution.

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